Construction Assignments Pty Ltd v Inner West Council [2023] NSWLEC 1281

Construction Assignments Pty Ltd v Inner West Council [2023] NSWLEC 1281

Because the amended application resolved the Council's contentions, the clause 4.6 request justified the contravention of the height standard, and the relevant jurisdictional prerequisites were satisfied, the parties' agreement to grant consent subject to conditions was a decision the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
07 June 2023
Procedural Posture
Class 1 Development Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da/2021/1167 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions contained in Annexure A.
Legal Topics
['development Appeal' 'commercial Premises' 'variation to Height of Buildings Development Standard' 'clause 4.6 Request' 'conciliation Conference' 'contaminated Land Remediation' 'biodiversity and Vegetation Removal' 'aircraft Noise' 'design Excellence']
['environmental and Planning Law' 'development Consent' 'land and Environment Court Procedure'] ['development Appeal' 'commercial Premises' 'variation to Height of Buildings Development Standard' 'clause 4.6 Request' 'conciliation Conference' 'contaminated Land Remediation' 'biodiversity and Vegetation Removal' 'aircraft Noise' 'design Excellence']

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Procedural Posture

Class 1 Development Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da/2021/1167 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreement was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the clause 4.6 request justified contravention of the height of buildings standard under clause 4.3 of the Marrickville Local Environmental Plan 2011.' 'Whether the amended development application satisfied relevant jurisdictional prerequisites, including zoning, floor space ratio, acid sulfate soils, earthworks, aircraft noise, airspace operations, business and office premises, design excellence, contamination, vegetation removal and BASIX requirements.']

Ratio Decidendi

Because the amended application resolved the Council's contentions, the clause 4.6 request justified the contravention of the height standard, and the relevant jurisdictional prerequisites were satisfied, the parties' agreement to grant consent subject to conditions was a decision the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; development consent granted subject to conditions contained in Annexure A.

Orders

  • ['Leave is granted to the Applicant to rely on the amended documentation listed in Annexure A.' "The Applicant's written request pursuant to clause 4.6 of the Marrickville Local Environmental Plan 2011 seeking to justify contravention of the height of buildings standard under clause 4.3 of the Marrickville Local...